Private Law Theory

ABSTRACT
If the idea of ownership was ever the “sole and despotic dominion” over property, it has been significantly reshaped over the past decades. Indeed, private property is not unfamiliar with adapting to regulations that respond to important public interest and welfare concerns. Examples include land-use controls and the rise of environmental regulations in the past decades. At the time of early development, land-use and environmental regulations were probably perceived by some landowners as disruptive and burdensome , but now they are generally accepted as regulations that have widespread benefits for the public’s general welfare. They are almost never considered an unfair interference with the property rights of owners unless they are overly burdensome or obviously disproportionate. Thus, private property has learned to co-exist with such regulations even though they often have broad effects on the use and enjoyment of property.

This book chapter will focus on a new challenge in the constitutional sphere, regulations that have the purpose of reaching sustainability. It is safe to say that we have already stepped into a new era of sustainability in property scholarship, where property scholars are engaged in the discussion of whether and to what extent we can reshape and reinvent current private property rules to include notions of sustainability. The constitutional aspect of property has, however, received less attention, but in the constitutional aspect we must answer both doctrinally and theoretically what could and should happen when sustainability and property come into tension with one another. We already have some tools at our disposal to understand this relationship, but because of the novelty of sustainability, including its emphasis on the interests of future generations, we may need some rethinking and reinventing.

Petersen, Vidir, Constitutional Property Law in Research Agenda in Property Law, Bram Akkermans ed (Edward Elgar, 2023).